Filed 8/29/14 P. v. Ayon CA6

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for 

publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication 

or ordered published for purposes of rule 8.1115. 

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SIXTH APPELLATE DISTRICT

THE PEOPLE,

Plaintiff and Respondent,

 v.

LILLIAN AYON,

Defendant and Appellant.

 H039900

 (Santa Clara County

 Super. Ct. No. CC066607)

Defendant Lillian Ayon was placed on probation based on her plea of no contest to 

a charge of welfare fraud. On appeal from an order revoking and reinstating probation

for the second time, she contends that the court erroneously imposed a “second restitution 

fine.” We conclude that although the challenged fine is misdescribed in the record it was 

intended only as a continuation of the fine originally imposed. We will direct a 

correction and affirm the judgment as corrected.

BACKGROUND

A complaint was filed on March 30, 2000, charging defendant and Jose Jesus 

Ayon with felony welfare fraud (Welf. & Inst. Code, § 10980, subd. (c)(2)) in that they 

obtained over $400 in food stamps by means of a false statement or fraudulent device. 

She pled no contest on March 8, 2004. On March 30, the court placed her on probation 
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for five years on the conditions, among others, that she pay $6,221 restitution to the 

defrauded agency and pay a restitution fine of $300. 

On December 18, 2008, the court ordered probation revoked and a bench warrant 

issued for failure to comply with the terms of probation. The probation department 

reported, as relevant here, that defendant had failed to make timely payments toward 

victim restitution and her court-ordered fines and fees, including the “State Restitution 

Fee,” on which she owed $200. Defendant was arrested on February 24, 2010, and upon 

her admission of the violation, was again placed on five years probation as a “new grant.” 

On June 14, 2011, probation was again revoked and a bench warrant ordered. 

Defendant was arrested on April 4, 2013. On May 15, she admitted that she had violated 

probation and was sentenced to 16 months in county jail. She filed this timely appeal.

DISCUSSION

Defendant contends that the court erred by imposing a new $200 fine on 

May 15, 2013, after probation was revoked for the second time. Respondent does not 

deny that it would have been error to impose a new fine, but contends that the $200 fine 

was the unpaid portion of the $300 fine originally imposed.

At the hearing on May 15, 2013, the court pronounced judgment in pertinent part 

as follows: “In this matter, court will . . . select the mitigated term of 16 months. 

[¶] . . . [¶] And court will impose a restitution fund fine previously suspended, $200.” 

The clerk’s minutes include an entry reading as follows, with the underlined material 

inserted, and the struck-through material apparently obliterated, by hand: “Add’l RF 

$200 Susp’d PC1202.44/45.” The abstract of judgment contains the entry, “Restitution 

fine(s) . . . . $200 per PC 1202.45 suspended unless parole is revoked.” 

There is no indication that the court intended to impose a fine under either Penal 

Code section 1202.44 (section 1202.44) or 1202.45 (section 1202.45). Nor does it appear 

that it could have done so. Section 1202.45 is triggered only when the defendant’s 
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sentence carries a term of parole (id., subd. (a)) or the defendant is placed on community 

release (id., subd. (b)). Defendant was not placed on community release, and was not 

subject to mandatory parole because she did not receive “[a] sentence resulting in 

imprisonment in the state prison pursuant to Section 1168 or 1170.” (Pen. Code, § 3000, 

subd. (a)(1); see People v. Cruz (2012) 207 Cal.App.4th 664, 672, fn. 6.) The court could 

not have imposed a fine under section 1202.44 because that statute, which calls for 

imposition of the fine “at the time of imposing the restitution fine pursuant to subdivision 

(b) of Section 1202.4,” had not yet been enacted in March 2004, when the court 

sentenced defendant and imposed a fine under the latter provision. (See Stats.2004, ch. 

223, § 3.)1

In its oral pronouncement of judgment the court described the fine as “a restitution 

fund fine previously suspended.” This description is most consistent with a probation

revocation fine, previously imposed but conditioned on revocation of probation, as 

provided in section 1202.44. As noted, however, the court had not (and could not have) 

imposed such a fine. What it had imposed was a fine under Penal Code section 1202.4 

(section 1202.4), which provides for an unconditional “restitution fine.” At the time of 

the judgment now under review, $200 of the original $300 fine apparently remained 

unpaid. It is this fine that the court apparently meant to impose. The clerk, however, was 

understandably confused about the matter, resulting in a misdescription in the abstract of 

judgment.

 

1

 Because of this analysis it is unnecessary to decide whether imposition of a fine 

under section 1202.44 or 1202.45 would offend the constitutional ban on ex post facto 

laws. (See U.S. Const., art. I, § 10, cl. 1; Cal. Const., art. I, § 9; People v. Murray (2007) 

155 Cal.App.4th 149, 152, fn .2 [not reaching question with respect to 1202.44]; People 

v. Cruz, supra, 207 Cal.App.4th at p. 672, fn. 8, citing People v. Flores (2009) 176 

Cal.App.4th 1171, 1181-1182 [“imposition of a parole revocation restitution fine 

pursuant to section 1202.45 is viewed as punitive for ex post facto purposes”].)
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DISPOSITION

The trial court is directed to modify the abstract of judgment by striking the $200 

fine under Penal Code section 1202.45 and inserting in its place a $200 fine under Penal 

Code section 1202.4. As so modified, the judgment is affirmed.

______________________________________

RUSHING, P.J.

WE CONCUR:

____________________________________

PREMO, J.

____________________________________

MÁRQUEZ, J.